October 9, 2003 98-R-0549
FROM: Susan Price-Livingston, Research Analyst
RE: Volunteer Firefighter Liability You asked when volunteer firefighters may be sued for actions undertaken in the course of performing firefighting duties in Connecticut, and for a survey of the laws in the other New England states.
All of the New England states provide firefighters, both paid and volunteer, some form of protection against claims arising from their firefighting activities. In general, the state laws reflect differing policies regarding (1) what sorts of conduct should be immunized, (2) when cities and towns will indemnify firefighters for tortious conduct, and (3) when workers' compensation laws provide an injured firefighter's exclusive remedy for injuries caused by fellow firefighters.
Maine appears to afford the greatest protection from personal liability for tortious acts, immunizing firefighters from many common law claims, including some intentional torts. Connecticut appears to take a middle of the road approach, while Rhode Island appears to offer the least protection.
Connecticut law bars trespass actions against firefighters who go onto property to extinguish or investigate fires (CGS § 7-308). In general, however, firefighters can be sued for intentional torts such as assault and battery, false imprisonment, invasion of privacy, and defamation to the same extent as any other Connecticut citizen.
They may also be sued when they negligently injure persons or property while they are performing firefighting duties. Connecticut broadly defines firefighting duties as including duties performed while at fires, while answering fire alarms, answering and returning from calls for mutual aid assistance, at fire drills or parades, at tests or trials of any apparatus or equipment normally used by the fire department, going directly to or returning directly from such tests or trials, answering or returning from ambulance calls where the ambulance service is part of the fire service, answering or returning from fire department emergency calls, and any other duty ordered by a superior or commanding officer in the fire department (CGS § 7-314).
The Good Samaritan Law
Connecticut's Good Samaritan Law affords volunteer firefighters protection from negligence liability for damage caused while giving emergency first aid, or when forcibly entering a residence to render first aid to a person who they reasonably believe to be in need of emergency first aid (CGS § 52-557b(b)). The law does not apply to acts or omissions constituting gross, wilful or wanton negligence (Id.). But a trial court has held that notwithstanding the statute's exclusion of acts of gross negligence, our common law does not recognize such claims, and only wilful or wanton negligence can give rise to liability under that law (Shaham v. Wheeler, 1997 Ct. Sup. 64 (Jan. 2, 1997)).
If statutory notice and time limit requirements are met, the municipality must pay any damage award that a volunteer firefighter becomes legally liable to pay as a result of the discharge of his firefighting duties, unless his conduct has been found to be wilful or wanton (CGS § 7-308). Our courts have defined “wilful” as meaning purposely and knowingly (State. v DeJesus, 194 Conn. 376, 383 (1984)), and “wanton” as meaning recklessly, in disregard of the rights of others, but without the intent to harm (Dubay v. Irish, 207 Conn. 518, 532 (1988)).
There is apparently no state law requiring municipalities to assume the costs of a volunteer firefighter's legal defense. The firefighter indemnification statute does allow the municipality and the firefighter to be represented by the same attorney, but only if the municipality files a written notice with the court indicating that it will pay any verdict rendered against the firefighter (CGS § 7-308).
The indemnification statute that covers firefighters appears to provide them with less protection from damage awards than the state requires of other municipal employers. Under the general municipal indemnification statute, towns, cities, and boroughs must assume liability for damages awarded in civil rights cases in addition to those awarded for injuries to people or property (CGS § 7-465(a)). That law, like the firefighter indemnification statute, excludes claims based on wilful or wanton conduct, and those based on actions occurring outside the scope of employment. Another municipal indemnification statute requires each municipality to hold its employees harmless from financial loss and expense, including legal fees and costs, arising out of any legal claim, lawsuit, or judgment, because of the alleged negligence or an alleged civil rights infringement by the employee or official while acting in the discharge of his duties (CGS § 7-101a). It exempts indemnification for conduct that a court has determined to be malicious, wanton, and wilful.
Suits Involving Co-workers
Our workers' compensation law affords firefighters greater protections against suits by co-workers than in most other employment relationships in the state. When a firefighter injures or causes the death of a co-worker under circumstances in which the injured worker or his legal representative is eligible to collect worker's compensation benefits, the firefighter causing the injury may be sued only if his conduct is both wilful and malicious (CGS § 7-308; Goodwin v. Pratt, 524 A.2d 1168 (1988)). Our courts interpret “malicious” as meaning “acting with a deliberate intent to injure” (Groton v. Medbery, 6 Conn. Cir. 671, 673 (1972)). In other employment contexts in this state, suits against co-workers are not barred if based on a fellow employee's negligent operation of a motor vehicle or when it is alleged that the wrongdoer acted either wilfully or maliciously (CGS § 31-293a).
FEDERAL CIVIL RIGHTS LAWS
Volunteer firefighter departments and individual firefighters may also be sued under federal civil rights laws for constitutional violations. In Janusaitis v. City of Middlebury, 607 F.2d 17 (2d Cir. 1979), a volunteer sued the fire department and several officers personally for infringing on his free speech rights. In order to establish personal liability for constitutional violations, the firefighter must prove that the wrongdoer's actions were outside the scope of their legitimate authority, and were undertaken wantonly, maliciously or in reckless disregard of the plaintiff's known constitutional rights (Harlow v. Fitzgerald, 457.U.S.800(1982)).
Because of the U.S. Constitution's Supremacy Clause, state and local governments cannot immunize individuals performing governmental functions such as firefighting from liability under federal laws. But the U.S. Supreme Court has indicated that groundless constitutional claims against government actors should be disposed of as early as is appropriate in a given case. (Anderson v. Creighton, 483 U.S. 635 (1987)).
OTHER NEW ENGLAND STATES
Maine's Tort Claims Act provides absolute immunity for employees of governmental entities, including volunteer firefighters (1) for performing or failing to perform any discretionary function or duty, whether or not the discretion is abused, and whether or not any statute, charter, ordinance, order, resolution, rule, or resolve under which the discretionary function or duty is performed is valid and (2) for any intentional act or omission within the course and scope of employment, unless undertaken in bad faith. That law also prohibits plaintiffs from securing prejudgment attachments against such employees' personal property (Me. Rev. Stat. Ann Tit. 14 § 8111).
The bar applies whenever a discretionary act is reasonably encompassed by the duties of the governmental employee in question (Id.) Although we found no Maine cases involving firefighter liability, in other jurisdictions firefighting functions such as decisions about how to fight fires or how to train and equip fire departments have been found to be discretionary acts (57 Am. Jur.2d § 484, §490). But some jurisdictions have concluded that the operation of a fire truck while responding to a call is not a discretionary act, and therefore may give rise to a lawsuit (Id.).
It appears that in Maine firefighters may be sued personally for actions that are outside the scope of their employment, and for discretionary actions that are undertaken in bad faith. There is a $10,000 limit per occurrence on personal liability for negligent acts undertaken within the course and scope of employment.
Indemnification. In Maine, governmental entities must either assume the defense of employees sued for actions occurring within the course and scope of their employment, or pay their reasonable attorneys' fees and litigation costs (Me. Rev. Stat. Ann. Title 14 §8112). They must also indemnify firefighters and other employees for any claim for which sovereign immunity has been waived, unless the employee has engaged in criminal conduct, or acted in bad faith. Governmental entities must also assume the legal defense or litigation costs of employees sued under circumstances in which the government is immune from suit. But an employee found to have engaged in criminal conduct, or to have acted in bad faith, can be required to repay those costs after the litigation ends (Id.). We have found no case applying the indemnification statute to claims involving volunteer firefighters.
Suits Involving Co-workers. Maine's workers' compensation act recognizes the dual liability doctrine (Me. Rev. Stat. Ann Tit. 39-A §107). An injured employee who is eligible for workers' compensation benefits may choose either to collect them, or to pursue legal claims against any wrongdoer other than his employer. Although we did not find any cases directly on point, it appears that the Maine law does not bar common law actions against fellow firefighters, whether paid or volunteer.
Volunteer firefighters are immune in Massachusetts from personal liability for negligent or wrongful acts or omissions made while acting within the scope of their office or employment. (M.G.L. Ch. 258, § 2). That law creates a procedure for bringing claims against such employee's governmental employer and provides that its remedies are exclusive.
Indemnification. State and local governmental units are liable for the wrongful actions of their employees to the same extent as any private entity would be, except that they cannot be required to pay (1) prejudgment interest, (2) punitive damages, or (3) monetary damages in excess of $100,000 per occurrence (Id.) They are also required to provide legal representation at no cost to any public employee who is improperly sued, so long as they determine that the employee was acting within the scope of his office, and he reasonably cooperates in the defense of his claim and any other claim arising out of the same subject matter. If the state determines that representing an individual would result in a conflict of interest, it must reimburse him for reasonable attorney's fees, so long as the claim arose out of actions within the scope of the employee's job duties and the employee provides reasonable cooperation. Once again, our research found no cases involving a volunteer firefighter's right to indemnification.
Suits Involving Co-workers. If an injured firefighter or his legal representative is eligible to collect workers' compensation benefits, he may not sue a fellow employee at common law for causing such injury. ( M.G.L. Ch. 152 §15).
In New Hampshire, a volunteer firefighter cannot be held liable in any action to recover for personal injury or property damage arising out of any act performed or occurring in the furtherance of his official duties, except where his conduct rises to the level of willful misconduct, gross negligence, or the operation of a motor vehicle or other equipment under the influence of drugs or alcohol. The law covers only “official duties”, which it limits to emergency duties only (N.H. Rev. Stat. Ann. § 507:8-L).
Indemnification. New Hampshire requires local governments and political subdivisions to indemnify and hold harmless employees who are sued for violations of federal civil rights statutes. They need not indemnify individuals who are found to have acted with malice or outside the scope of their employment or office, and they may recover litigation costs and attorney's fees incurred in defending such employees (N.H. Rev. Stat. Ann. § 31:106) It is not clear whether this law applies to volunteer firefighters.
Local governments may, but are not required to, vote to indemnify and to pay the legal costs of employees who have been held personally liable for negligent acts occurring within the scope of their employment (N.H. Rev. Stat. Ann. § 31:105)
Suits Against Co-workers. New Hampshire's workers' compensation act allows injured employees to sue co-workers for intentional torts. It defines an intentional act as being one that the actor knows is substantially certain to result in injury (Thompson v. Forest, 614 A.2d 1064 (N.H. 1992)).
Rhode Island apparently allows firefighters to be held liable for personal injuries that result from their gross, willful, or wanton negligence in the voluntary and gratuitous rendering of emergency assistance to a person in need thereof (R.I. Gen. Laws § 9-1-27). We have found no cases construing that statute.
Indemnification. Rhode Island permits, but does not require, towns, city councils, or fire districts to indemnify employees, including volunteer firefighters, for wrongful acts undertaken within the scope of their official duties. Again, we have found no cases construing that statute (R.I. Gen. Laws § 45-15-16).
Suits Against Co-workers. Rhode Island allows employees to opt out of workers' compensation coverage by giving their employer and the state workers' compensation director written notice at the time of hire of their intent to retain their common law rights (R.I. Gen. Laws § 28-29-17). If they do not do so, the workers' compensation act provides the exclusive remedy for on the job injuries; all claims against fellow employees are extinguished (Nunes v. Aiello, 664 A.2d 1121 (R.I. 1995).
Although the state requires volunteer firefighters be covered by its workers' compensation laws, it is not clear whether they are permitted to opt out of coverage. We could find no statutory or case law on this question.
Vermont gives municipalities, fire departments, and firefighters absolute immunity from claims that they were negligent in responding to fires or in assisting in other natural disaster calls. This statute has been interpreted to bar claims of negligent training of personnel, equipping of trucks, negligence in not allowing property owners to re-enter premises to retrieve property, and responding too slowly to fire alarms (Stevenson v. Capital Fire Mutual Aid Systems, 163 Vt. 623 (1995)). It also bars recovery against volunteer fire departments that have purchased liability insurance, in spite of another Vermont statute that eliminates sovereign immunity for claims that are covered by insurance (Vt. Stat. Ann. Tit. 20 § 2990).
Finally, Vermont has another statute that appears to provide an absolute bar to officers while engaged in extinguishing a fire at or near the scene of such fire for their own actions and the actions of anyone acting under their orders. This immunity also protects those following a superior's orders at or near the scene of a fire (Vt. Stat. Ann. Tit. 20 § 2922).
Indemnification. We could find no Vermont statute providing for indemnification of governmental employees.
Suits Against Co-workers. Vermont's worker's compensation act appears to allow suits against co-workers. Its courts have given qualified immunity to co-workers of governmental entities when they are (1) acting during the course of their employment, and acting, or reasonably believe they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts (Libercent v. Aldrich, 539 A.2d 981, 984 (1987)).